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IDEA Complaint Decision 22-065

On August 26, 2022 (form dated August 12, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from ####(complainant) against the #### School District (district). This is the department’s decision regarding that complaint. The issue identified is whether the district, beginning August 26, 2021, properly followed special education disciplinary procedures.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. 34 CFR §§ 300.320, 300.323, 300.324; Wis. Stat. § 115.787. On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the district must notify the parents of that decision and provide the parents with a copy of the procedural safeguards notice. Expulsion is a disciplinary change of placement. Within 10 school days of the decision to make a disciplinary change of placement, the district must also conduct a manifestation determination that includes the parent and relevant members of the student’s IEP team. All relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents, including medical information, must be reviewed to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability or was the direct result of the district’s failure to implement the IEP. 34 CFR § 300.530(e). This list of information is not exhaustive, and all relevant information must be considered.

If the behavior is determined not to be a manifestation of the student’s disability, school personnel may proceed with the disciplinary change of placement, but educational services must still be provided to ensure that the student continues to receive a free, appropriate public education (FAPE). These services must be designed so that the student is able to continue to participate in the general education curriculum and to make progress toward meeting the goals set out in the student’s IEP. 34 CFR § 300.530.

The student that is the subject of this complaint attended sixth grade in the district during the 2021-22 school year. The student began receiving special education services in 2016 for an emotional behavioral disability. The student’s clinical diagnoses include anxiety disorder, attention-deficit hyperactivity disorder (ADHD), and oppositional defiant disorder (ODD). During the school year, the student had several out-of-school and in-school suspensions for behavior described as being loud, disruptive, and disrespectful.

On May 25, 2022, the student brought a folding knife to school and showed it to a peer during indoor recess. The student’s general education teacher approached the student and told the student to hand over the knife. The student surrendered the knife without incident. The student’s behavior began to escalate when they were heading to the principal’s office. The district suspended the student for five days, which was the remainder of the school year, given the date. The district measured the knife and confirmed it met the school board’s definition of a weapon and violated district policy. On May 27, 2022, district administration sent notice of an expulsion hearing scheduled for June 16, 2022.

Prior to the expulsion hearing, members of the IEP team met on June 9, 2022, for a manifestation determination meeting. IEP team members present included the student’s parent, grandparent, the family’s advocate, a regular education teacher of the student, a special education teacher, the school principal, and the district special education director who served as local education agency (LEA) representative. The student’s assigned special education teacher during the school year had resigned by the time of the meeting, so the district included another special education teacher that had worked with the student in the recent past.

During the manifestation determination meeting, the special education director had access to the student’s entire case file and shared the computer screen with meeting participants. The advocate participated virtually, while in-person members viewed the same screen projected in the meeting room. The IEP team worked through the manifestation determination form together. A draft form had been prepared before the meeting describing the incident and a one-paragraph summary of the student’s case file. The team began the meeting by reading the draft summary of the incident. Over the course of the meeting, they also reviewed or referenced information such as the student’s prior manifestation determination which described a pattern of inappropriate behavior and aggression towards staff, the IEP, the Behavior Intervention Plan (BIP), and Functional Behavior Assessment (FBA). While the IEP team did not directly review information from the student's 2016 initial evaluation, they discussed how standardized assessments have historically not been a reliable indicator of the student’s cognitive functioning due to lack of interest and a tendency to escalate when faced with an academic challenge.

During the summary of the review of the student’s case file and before the team began discussing the relationship between the student’s disability and the behavior, the principal stated that they believed possession of the knife was not a manifestation of the student’s disability. This raised concern that the principal may have predetermined the outcome of the manifestation determination. The director, as LEA representative, reminded the IEP team they would make a decision at the end of the meeting. The principal’s later statements in the meeting demonstrated they actively considered information not known at the beginning of the meeting. The principal sharing their opinion early raised tension in the meeting but did not impact the ultimate outcome.

The IEP team discussed information about the student’s disability. The advocate provided information about general symptoms of ODD and ADHD such as working memory issues. The parent and grandparent provided information regarding the student’s difficulty with executive functioning. The student’s parent stated that the student cannot comprehend the long-term consequences of their actions. The parent expressed concern that following the incident, the student was agitated and did not have an opportunity to explain their side of what happened while they were emotionally and behaviorally regulated. The parent told the IEP team the student eventually told the parent they did not realize they had the knife until they felt it in their pocket at school. The student had recently bought the knife at a garage sale, so the student wasn’t used to removing the knife from their pocket and leaving it at home. Before going to school, the student had shown the knife to their tutor.

School staff provided their observations of the student. Staff agreed that consistent with the symptoms of ODD, the student was unable to clearly think through the consequences of actions when agitated. To address this, the student’s BIP focuses primarily on self-regulation when escalated due to being confronted with something difficult or unfamiliar, or when confronted by an authority figure. The student’s BIP states, “when asked to do something difficult or unfamiliar, [the student] will engage in verbal aggression targeted towards staff and students.” However, when calm, the student was able to make longer term plans and execute them. The team discussed their observations that when the student is emotionally and behaviorally regulated, the student is able to comply with school rules, understand consequences, and remember routines.

The team discussed staff typically seeing behavior challenges mainly in academic settings, but the student also had several behavior incidents during recess and lunch during the school year. When agitated the student typically displayed loud and aggressive behaviors. However, IEP team members agreed the student seemed calm and regulated during the incident with the knife, which took place during indoor recess. The family contended this calm behavior indicated that the student either did not know the rule prohibiting knives or did not remember that the knife was in their pocket.

The team determined the student’s IEP was fully implemented at the time of the incident. The director asked IEP team members to, one at a time, share whether they believed the behavior had a direct and substantial relationship to the student’s disability and to explain why. The advocate answered yes; they believed there was a direct connection between the behavior and the symptoms of ADHD. The parent agreed with the advocate. The principal answered no because the student had shown the knife to someone earlier that morning outside of school, and therefore believed the student had not forgotten that the knife was in their pocket. The student’s grandparent answered yes, as they felt because of the student’s ADHD, the student did not understand their actions were against the rules. The general education teacher answered no because the student was not emotionally or behaviorally escalated when they brought the knife to school. The special education teacher answered no based on her previous work with the student and that this incident did not match how the student’s disability-related behavior typically manifests in school.

Because the team could not reach a consensus, the special education director, as LEA representative, made the final determination that the conduct was not a manifestation of the student’s disability and documented several reasons supporting this finding. Evidence suggested the student was aware they had the knife in their possession that day because they had taken it out to show the tutor in another setting. Although the general symptoms of ADHD include impaired working memory, school staff have not seen that as a primary way ADHD affects the student at school. The student is able to remember routines, remember information from day to day, and demonstrates an ability to keep track of his possessions. The student’s disability typically manifests at school when escalated. Because the student was not escalated, the LEA representative believed this indicated the student was able to think clearly at the time they brought the knife to school.

The IEP team discussion about the student’s disability took up most of the meeting, which lasted about 90 minutes. The student’s parent, grandparent, and advocate all had the opportunity to present and review information about the student. Discussion included general symptoms of the student, teacher observations, the student’s emotional escalations, the student’s ability to remember information, and the student’s ability to think clearly in various situations. The student’s IEP team considered the potential for a causal connection between the student’s disability and possessing the knife.

The U.S. Department of Education has stated the intent of the manifestation determination requirement is for the team to determine whether there is a direct and substantial relationship between the behavior subject to disciplinary action and the student’s disability. An attenuated association between the behavior and the student’s disability, such as the association between a student’s disability and low self-esteem, is not sufficient for the team to determine whether the behavior is a manifestation of a student’s disability. Federal Register, Vol. 71, No. 156, p. 46720. The evidence, in this case, demonstrates a reasonable basis for the district’s determination that there was not a direct and substantial relationship between possession of the knife and the student’s disability.

Following the determination that the behavior was not a manifestation of the student’s disability, the district held an expulsion hearing, and the board expelled the student. The expulsion decision is not an IDEA issue and therefore is not under the department’s review in this complaint.

The IEP team later met on August 19, 2022, to determine the district's services to ensure the student continues receiving FAPE. Services in the current IEP are limited. The IEP team considered more service time but decided to temporarily limit instruction and focus on relationship-building with the student’s special education teacher. The IEP team found that relationship building is crucial to addressing the student’s disability-related needs and ensuring educational success. The IEP team agreed to reconvene in September or October to consider additional service time as trust builds.

The district properly followed the special education disciplinary procedures. This concludes our review of this complaint, and this decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at or contact the special education team at (608) 266-1781.